1 POSITIVE DRUG TEST CAN END PAROLE

Colo. High Court Affirms Board's Authority To Return Man To Prison

The Colorado Board of Parole has the authority to revoke parole and return a
parolee to prison based on a single positive drug test, the Colorado Supreme
Court ruled Monday.

The decision came in the case of Alexander H. Whidden, who was on parole
and, as a condition of his parole, was required to submit to random drug
testing.

Whidden, 28, was placed in the Intensive Supervision Program, where parolees
undergo supervised drug testing. They provide as many as four or five
samples for testing per month.

Whidden was tested three times before his parole revocation hearing. The
first two tests were negative, but the third was positive for cocaine.

Based on the positive drug test, Whidden's parole officer filed a complaint
alleging violation of the parole agreement. Whidden was returned to prison.

Phil Cherner, Whidden's lawyer, felt that the standard is unduly harsh for
parolees.

"When an inmate is first released from prison, they are in a whole new
environment," Cherner said Monday. "It is a major transition to go from the
jailhouse to somebody's home ... and there is no understanding of the
stress."

The court concluded that the 1991 Substance Abuse Act authorizes, but
doesn't require, the board to revoke parole and return a parolee to prison
based upon a single positive drug test.

Here, the administrative hearing officer acted properly in returning him to
prison, the court said.

Whidden had argued that the board lacked authority to revoke his parole
based on a single positive drug test, or, alternatively, if the board could
revoke his parole, it did not possess the authority to return him to prison.

Whidden argued that the only sanctions the board is authorized to impose
after a positive test are mandatory participation in a drug or mental-health
program, placement in a community correctional nonresidential program, or
one of several other "intermediate sanctions."

Justice Michael Bender said that parole officers initiate revocation
proceedings wherever they suspect a condition of parole has been violated.
Where a parolee violates a condition of his parole agreement, rather than
committing a separate criminal offense, the complaint is considered
discretionary and is decided on a case- by-case basis, Bender said.